Alhaji Danjuma Haruna & Anor V. Mrs. C.A. Ladeinde & Ors (1987)
LawGlobal-Hub Lead Judgment Report
UTHMAN MOHAMMED, J.C.A.
This is an appeal against the ruling of Desalu J. in which the learned trial Judge refused to grant to the appellants, who were applicants before him, leave to apply to set aside the default judgment entered against them. The appellants applied for the following orders before the trial court:
“1. An order extending the time within which to apply to set aside the judgment of this Honourable Court given on the 27th day of May, 1983 in the above named suit.
- An Order setting aside the said judgment and relisting the suit for hearing on its merit.
- An Order staying or suspending the execution of the said judgment pending the hearing and final determination of this application and
- For any further Order or Orders as this Honourable Court may deem fit to make in the circumstances.”
The learned Senior Advocate, Mr. Sikuade, in his brief, submitted that under Order 32 Rule 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972 the appellants’ application to set aside the judgment in question ought to have been brought within 6 days after the trial or within such longer period as the court may allow. The appellants have deposed in the affidavit attached to the motion in which the application was brought to the effect that a solicitor, one Mr. Aibinu was engaged to handle the case. He filed a statement of defence and never informed the 1st appellant of the date of trial or that the judgment had been obtained against them. Mr. Aibinu, in fact did not appear either at the trial or on the day of Judgment. The learned Senior Advocate went further and said that after appellants had known about the Judgment attempts were made to achieve an amicable settlement of the dispute out of court and it only became necessary to bring the application to set aside the judgment when the parties failed to reach a settlement. The delay therefore in applying to set aside the judgment was not without any reasonable cause.
On the application to set aside the judgment, counsel submitted that on the affidavit evidence before the court and which was not seriously challenged by the respondents, the lower court ought to have exercised its discretion in favour of the appellants. The appellants averred in the affidavit in support of the application that they engaged the services of a counsel one Mr. Aibinu who never at any time applied to withdraw from the case as required by the provision of Order 4 of the High Court of Lagos State (Civil Procedure) Rules, 1972. The learned Senior Advocate submitted further that the counsel having entered an appearance and filed a statement of defence on behalf of the appellants was obliged to receive all processes in respect of the case, to appear before the court and conduct the case to conclusion, unless at any stage of the proceedings he deemed it necessary to apply for leave to withdraw. The appellants have stated on Oath that they never heard from the counsel, as to the date for the trial or of the judgment and the counsel, Mr. Aibinu in his affidavit, at pages 141-144 of the record, admitted being instructed to conduct the case, that he filed a statement of defence, but never contacted his clients to let them know more about the case. Mr. Sikuade submitted that the appellants never saw the notices said to have been posted on the door and fence of the premises. There was infact no evidence that the second appellant, a limited liability company was infact served with the writ of Summons or was at any time represented by a counsel.
The appellants submitted that Mr. Aibinu not only filed a statement of Defence but also appeared in court, argued motions and received ruling. Yet he did not appear to conduct the case nor informed the appellants of the date fixed for hearing or of the progress of proceedings. Counsel referred to Doherty v. Doherty (1964) 1 ALL NLR, 299 and Akinyede v. Appraiser (1971)1 ALL NLR page 162 at 165 where it was held by the Supreme Court that courts would not penalise an applicant for the fault or mistake of his counsel. The learned Senior Advocate referred to authorities where it was held that where pleadings have been filed disclosing important issues for trial, the learned trial Judge should have exercised his discretion in the interest of justice to let the matters which had been pleaded by all the parties be canvassed thoroughly before the court so as to enable the court to hear evidence to come to a just conclusion on the respective claims of the parties.
See Edward U. Omadide for himself and on behalf of the Ekelegbo Section of Uwhe Family of Effurum v. Chief J. O. Adajeroh for himself and on behalf of the Uwhe Family of Effurum and 2 others (1976) 12 S.C. 87 at 96.
The learned counsel for the respondents Chief Sotayo-Aro submitted, in his brief that this application lacked merit because in the appellants’ affidavit in support of the application the 1st appellant failed to give any reason for his own absence on numerous occasions when the case was called up before judgment. Counsel referred to pages 18, 26, 49, 50, 63, 64, 72, 73, 79, 80, 88, 89, 93, 96, 98, 102, 104 and 106 and argued that the appellants’ absences were recorded. After 25th April, 1980 neither the appellants’ counsel nor the appellants themselves appeared any longer before the court during the course of the matter to the date of judgment. The respondents, with the assistance of the court bailiffs made numerous efforts to remind the appellants and their counsel of the stages and steps taken in the case by serving them with court processes. After the judgment was delivered a Bench Warrant was issued against the 1st appellant and it was after his arrest that he made his first appearance in court. Also Form 49 was served on the 1st appellant and he failed to file a return.
All the services made on the 1st appellant were at his residence B.4/134A, Alfa-Nla Street, Agege, Lagos State and that it was at the same address that Bench Warrant was executed on him Counsel submitted further that the learned trial Judge heard both counsel before giving his ruling in which he dismissed the application for extending time within which to apply to set aside the judgment and also for an order to set aside the judgment and relisting the suit for hearing. Mr. Sotayo-Aro then urged this court not to interfere with the ruling delivered since the learned trial Judge had exercised his discretion bona fide and he had not based his findings on irrelevant consideration and unproved facts – See 1. University of Lagos and Anor v. M.I. Aigoro (1985) 1 NWLR, 143. In conclusion, counsel submitted that since the application was filed on or before 9/7/84 and the judgment was given on 27/5/83, a period of about 14 months, the appellants were guilty of inordinate delay and there was a deliberate neglect on their part.
The only issue for the determination of this appeal as formulated by the counsel for the appellants is:
“Whether or not the learned trial Judge was right, having regards to the affidavit evidence before him, to refuse to exercise his discretion to extend the time for setting aside; and to also set aside his earlier judgment given in the absence of the appellants in favour of the Respondents”.
The first issue to be considered in this appeal is the refusal of the learned trial Judge to extend time for the appellants to apply to set aside the judgment entered against them in default of appearance. The judgment was delivered on 27th May, 1983 and the 1st appellant attested in an affidavit, that since the time he handed over the case to his counsel, one Mr. Aibinu, he did not receive any feedback from the lawyer. In fact he did not know that judgment had been entered against him until when he was arrested for non compliance with the orders in the judgment. After his arrest the 1st appellant briefed another counsel, Mr. Sikuade, the learned SAN and directed him to explore the possibility of settlement of the matter. It is on record that efforts were made to settle the matter out of court but without success. In paragraph 15 of 1st appellant’s affidavit he attested that the delay in bringing the application was due to the efforts being made by his solicitor to effect an amicable settlement of the matter. The matter remained pending before the court till 25th day of June 1984 when it was further adjourned to the 30th July, 1984. Mr. Sikuade argued that the application was not seriously challenged. Although the learned trial Judge, in his ruling, did mention about the points raised in the 1st appellant’s affidavit on the issue concerning the negotiated settlement, he did not make any comment on it.
It is clear from the record that the 1st appellant was brought before the learned trial Judge after his arrest on 15/2/84. On that day the 1st appellant explained that he was not served to appear in court but nevertheless prayed for forgiveness. Then his counsel asked for an adjournment so that Mr. Sikuade, who was then unavoidably absent, could take up the matter. The first appellant was then released on bail in the sum of N10,000 with one surety in the same amount. On 20th February, 1984, Mr. Sikuade told the court that he had advised his client to settle the matter and prayed for an adjournment. The court recorded thus:
“The matter is therefore adjourned till 30/4/84 as agreed, to report settlement”
On 30/4/84 Mr. Sikuade told the court that he had received a form about settlement and that it was Mr. Lardner SAN who signed the form. There and then, Mr. Shotayo-Aro said that the trial Judge adjourned the matter again to 25/6/84 for the parties to report of any settlement if possible. On 25/6/84 Mr. Sikuade reported that there was no agreement as to settlement. Immediately after this dialogue the motion which is the subject of this appeal was filed. The learned trial Judge did not go into these facts in the ruling in which he refused to grant the application. He only said that the application was not made bona fide.
Under 0.32 Rule 4 any judgment obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seem fit, upon an application made within six days after trial or within such longer period as the court may allow. This first leg of the application is therefore interwoven with the second part of the application that is an application for an order setting aside the judgment and relisting the suit for hearing on its merit. The main argument of Sikuade SAN in this appeal had been summarised, in his brief, as follows:
“(i) The appellant having engaged the services of a legal practitioner, who did enter an appearance on his behalf, was entitled to assume that the legal practitioner would attend court and conduct the case on his behalf.
(ii) That the legal practitioner having entered an appearance for the appellant was in law obliged to accept processes in respect of the case, appear in court and conduct the case before that court to conclusion unless released from the obligation by the court on an application by him pursuant to Order 4 of the High Court of Lagos State Civil Procedure Rules, 1972.
(iii) That the appellant should not be allowed to suffer for the conduct of his Solicitor who without cause failed to perform his duty towards the appellant.”
The learned Senior Advocate referred to the case of G.B.A. Akinyede v. The Appraiser (1971) 1 ALL NLR 162 where the Supreme Court held that the granting of an application for extension of time is entirely within the discretion of a Judge who heard the application. But that discretion must be exercised judicially. The Supreme Court found in that case that the learned trial Judge did not consider the judgment in Doherty v. Doherty (1964) 1 ALL NLR 299. If he had done so he would have acceded to the application for extension of time on the reasons before him on 29 of May 1967. In that judgment which was written by Coker, J.S.C. the learned Justice said;
“We have already pointed out that in his notice he clearly stated that he was appealing against the decision of the High Court Lagos upon his application dated 13th of May, 1967 and we are rather anxious that where, as in this case, the only reason for penalising an applicant was the fault or mistake of his counsel, we should be able to ensure that justice is done.” (underlining is mine).
In the case in hand it is without any doubt that Mr. Aibinu, the learned counsel who first appeared for the appellants and filed a statement of defence for the 1st appellant abandoned the case for reasons which he made no secret about it. It is on record that all processes were served on him and he refused to come to court and defend the action or apply to the court for his discharge from the case. There are also many lapses in the service of hearing notices which contributed in the failure of the appellants to appear in court and defend the action.
At the beginning of the action, the 1st appellant was sued under a wrong name and Mr. Aibinu brought an application to strike out the action. It was not struck out but the correct name was ordered to be amended by the learned trial Judge. The respondents’ counsel also filed an application asking the court to delete the name of the second appellant from the suit. The application was abandoned but later when Mr. Aibinu filed a motion seeking for striking out the name of the 2nd appellant, Mr. Sotayo-Aro conceded that the name be struck out but the learned trial Judge refused to strike out the 2nd appellant in the suit. Mr. Sikuade submitted before us that there was no evidence that the 2nd appellant, a limited liability company was in fact served with the writ of summons or was at any time represented by counsel. I think Mr. Sikuade is right in this submission because Mr. Aibinu declared himself as appearing for the 1st appellant and filed a statement of Defence on behalf of the 1st appellant. For the 2nd Appellant he entered conditional appearance and applied unsuccessfully to have the company struck out of the action. Under Order 6 Rule 11 of the High Court of Lagos State (Civil Procedure) Rules, 1972 all documents requiring personal service on a registered company shall be by delivering such process to any director, secretary or other principal officer of the company or by leaving it at the registered office of the company or its principal place of business within the jurisdiction. The hearing notice was served in this matter, according to the affidavit of service, against the 2nd appellant by affixing it on the fence of the disputed land. This surely is not the correct way to serve a limited liability company with a court process. The law says that service should be made personally on any of the company’s directors, secretary or other principal officer of the company. In the alternative service shall be good by leaving the process at the company’s registered office. From the record of this appeal it is quite clear that hearing notices were served on Mr. Aibinu, counsel for the appellants and the services of all the notices were made personally by a legal practitioner; Jimoh Lasisi, of 13B Festival Road, Victoria Island, Lagos. The learned trial Judge, quite rightly, said in his ruling that Mr. Aibinu was present, in court, on 25th April 1980 when an order was made amending the name of 1st appellant to Alhaji Danjuma Haruna instead of Alhaji Haruna Danjuma and from the record that was the last day Mr. Aibinu appeared in respect of the trial of this case. He filed the statement of Defence of the 1st defendant/appellant on 9th May, 1980 and then showed his face no more. Many attempts were made to bring him to court but all was in vain. Mr. Jimoh-Lasisi had attested in two separate affidavits, the first on 14th December, 1981 and the second on 13th January, 1982, that he visited Mr. Aibinu in his office and that the said Mr. Aibinu had confirmed that hearing notices and other processes were served on him. On both occasions Mr. Aibinu told Mr. Jimoh Lasisi that he was not coming to court because the 1st appellant had not fully paid him. On the first occasion when Jimoh-Lasisi pointed out to Mr. Aibinu that his duty was to the court and that he should go to court and ask for permission to withdraw from the case Mr. Aibinu said he had no intention of doing so. It is relevant however to mention that the learned trial Judge had made several rulings ordering that service on counsel should be made and be deemed good and proper; and from the records for this appeal, it is evidently clear that the processes were served on Mr. Aibinu. Mr. Aibinu stayed away from the court and did not show up until when the present application was brought before the learned trial Judge and his attention was drawn to the affidavit sworn to by the 1st appellant. The counsel then came to the court and swore to an affidavit in which he explained his role in the case. It is pertinent to reproduce paragraphs 1 – 6 from the affidavit because one can see the reasons given by Mr. Aibinu for his absence from the court. Those paragraphs are as follows:
“I, ADEGOKE AIBINUOMO, Nigerian Citizen, Legal Practitioner of 54 College Road, Ifako Agege, Lagos State make Oath and say as follows:
- That on 3rd July, 1984 Mr. Akin Sikuade, SAN, now representing the defendants in this suit drew my attention to certain averments in the affidavit in support of the defendants’ application for setting aside the judgment of this Honourable court in this suit dated 25/5/82 which averment touched upon my professional connection with this suit some years back.
- That it is at the instance of Mr. Akin Sikuade, S.A.N. that I now make this Oath verifying my connection with the suit in the past.
- That the present case was one of the series of cases in which I formerly represented the 1st defendant in the High Court, Ikeja during the period 1978/1981 or thereabout.
- That on the instructions of the 1st defendant I entered appearance for him and settled a statement of defence and filed same on his behalf.
- That for almost one year after filing and serving the statement of defence aforesaid I never saw the 1st defendant and no further step was, to my knowledge taken by the plaintiffs then in prosecuting their claim.
- That sometime in December, 1981, at about 6.30 p.m. one Mr. Jimoh Lasisi who introduced himself as a colleague in the chambers of Mr. H. A. Lardner, S.A.N. representing the plaintiffs in this suit came to my office and inquired whether I had then been served with a copy of the plaintiffs’ motion for leave to amend their statement of claim in this suit. I replied in the negative.”
Judgment in respect of this appeal was reserved on 6th May, 1987, but after considering the respective submissions of both counsel we found it necessary to recall them for further address. The further address was on the absence of two affidavits of service of the hearing notices on the appellants from the record of appeal. Those affidavits of service were very vital in this case because following several attempts made to bring Mr. Aibinu to court the respondents filed an application on 13th December, 1982 seeking for the following orders:
“(a) An Order directing the Registrar of this Honourable court to issue hearing notice in this suit.
(b) An order directing that the said hearing notice be served on the counsel of the Defendants personally.
(c) An Order directing that the said hearing notice be served on the 1st Defendant by pasting the said hearing notice on No. B4/134A Alufa Nla Street, Agege Lagos State; the residence of the 1st defendant;
(d) An Order that the said hearing notice be pasted on the block-fence of the land in dispute: situate at Ijaiye Village Ojokoro Agege Lagos State.
(e) for such further order and/or other orders as may seem fit in the circumstances. ”
The learned trial Judge relied on the affidavit and fixed the hearing of the suit against the 3rd and 10th, of February, 1983. After the submissions of both counsel in the further address I am satisfied that there is proof that a hearing notice had been pasted at the residence of the 1st appellant. I cannot however say the same thing in respect of the second appellant. I referred to Order 6 Rule 11 of the High Court of Lagos State (Civil Procedure) Rules, 1972 earlier in this judgment and explained that a limited liability company could only be served with a court process by delivering it directly to any director, secretary or any other principal officer of the company. Failing that service could be made by leaving the process at the registered office of the company or its principal place of business.
The first appellant, in his affidavit denied the assertion that he had been served by pasting the hearing notice at his residence. He has a very strong ground to hold since the service on the second appellant was wrong in law and this being a joint trial. Is the argument of counsel correct, as the learned trial Judge also did that the appellants were aware of the existence of the suit but chose to take no steps in vindicating their rights? On this argument I think it is important to note that the appellants were defendants in the action. They are not expected to be physically present in court once they engage the services of a counsel. The only time when they are needed, in court is when they are summoned to appear to give evidence for the defence. The claim of the respondents was not actually ready for hearing because between April, 1980 and July, 1982 four amendments of the statement of claim were made. The order to serve a hearing notice by pasting it at the door of the residence of the 1st appellant and also on the fence of the land in dispute was made on 10th January, 1983 and the hearing commenced on the 3rd of February 1983.
The main issue in this appeal is the absence of proper service on the 2nd appellant. Under Order 32 Rule 2 of High Court of Lagos State (Civil Procedure) Rules, if when a trial is called on, the plaintiff appears and the defendant does not appear, then the plaintiff may prove his claim so far as the burden of proof lies on him. The court can proceed to hear the cause and give judgment on the evidence adduced by the plaintiff – See Grisby v. Juwe (1954) 14 W.A.C.A. 637. In this case it is established beyond all doubts that the 2nd appellant was not properly served before the hearing of the action. Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission (except where the proceedings are ex parte) which renders such proceedings void because the court has no jurisdiction to entertain it. See Obimonure v. Erinosho (1966) 1 ALL N.L.R. 250. In another case, Lawrence Scott-Emuakpor v. J.I. Ukavbe (1975) 2 S.C. 41 the Supreme Court held that if the failure of the defendant to appear is due to the failure to serve him notice of the hearing, then any judgment given in that circumstance will be one given without jurisdiction and will be set aside on appeal. The judgment given by the learned trial judge is against the two appellants jointly and severally. The judgment against the 2nd appellant cannot be sustained since the company was not served with hearing notice. Failure to serve a process is a fundamental vice and the person affected is entitled to have the order set aside. See Obimonure v. Erinosho (supra). On this issue alone the appeal in respect of the 2nd appellant must succeed.
However, assuming service on Mr. Aibinu, which has not been proved, is accepted as proper service on the 2nd appellants can the court penalize them for the offence of their lawyer? I think not for the reasons enunciated by the Supreme Court in the case of Akinyede v. Appraiser (supra). In the case of Doherty v. Doherty (1964) 1 ALL NLR 299 the Supreme Court held that the principles applied in dealing with an application to set aside a judgment obtained in default of appearance and relist the case for hearing on the merits are as follows:-
“(a) The reasons for the applicant’s failure to appear before the court when his case was heard;
(b) Whether there had been undue delay in making the application so as to prejudice the other party;
(c)Whether the other party would be prejudiced or embarrassed by an order for a new trial so as to render it inequitable to re-open the case; and
(d) Whether the applicant’s case is manifestly insupportable.”
The Supreme Court referred to the cases of 1. Grimshaw v. Dunbar (1953) 1 ALL E.R. 350 and 2. Idam Ugwu e.t.c. v. Nwaji Aba and Ors (1961) ALL NLR 438 and said;
“No argument of any substance has been put forward on behalf of the respondent to show that he would be prejudiced or embarrassed by the hearing of this appeal on the merit so as to render it inequitable to re-open the case and it is not possible on the affidavits before us to conclude that the appellants’ case is manifestly insupportable. Furthermore in the cases cited the parties applying for restoration were personally served with necessary processes whereas in the case before us as indicated above the appellants were at no time personally served. It occurs to us that the failure to comply with the conditions of appeal is entirely due in this case to the fault of the appellants’ solicitors and to shut them out from the hearing of the appeal on the merits is to hold them personally responsible for the negligence of their solicitors.”
In the case in hand I have no hesitation in following the decision of the Supreme Court in Doherty v. Doherty (supra) and Akinyede v. Appraiser (supra) in holding that the 2nd appellants could not be penalised for the fault or mistake of Mr. Aibinu. The counsel had abdicated his responsibility to both the court and his clients for his refusal to appear before the court and defend the action.
The next issue is the service of the hearing notice said to have been done by pasting it at the door of the said 1st appellant. The learned trial Judge relied on the affidavit of service sworn by bailiff, Shayoye Olayiwola and accepted that the 1st appellant had been properly served. Hence his order that the trial should commence on the 3rd of February 1983. The 1st appellant had sworn to an affidavit and denied ever being served with a hearing notice by pasting it at the door of his residence. He said that since he engaged Mr. Aibinu he was expecting a feedback from the counsel and that there was a time when he asked the counsel about the progress of the case. The counsel told him that to the best of his knowledge the respondents had taken no further step to prosecute the action. The 1st appellant further attested that the only time he knew that the matter had been tried and judgment delivered in his absence was when forms 48 and 49 under the Sheriffs and Civil Process Law Cap 127 laws of Lagos State were served on him.
I think it is always a difficult thing to establish whether a party has been served under an order for substituted service through the pasting of hearing notice at the door of a residence or office of a litigant. The law under which a substituted service could be made is order 6 Rule 6 (1) of the High Court of Lagos State (Civil Procedure) Rules 1972. It provides as follows:
“Where personal service is required by these Rules or otherwise, and it is made to appear to the Court or a Judge in Chambers that prompt personal service cannot be effected, the court or Judge may make such order for substituted or other service or for the substituting of notice for service, by advertisement, or otherwise as may seem just.”
Under this procedure an attempt to effect personal service should be made before applying for an order of substituted service, I will refer to the case of United Nigeria Press Limited & Anor v. Adebanjo (1969) 1 ALL NLR. 431. In that case the Supreme Court refused to allow for an order of substituted service for the following reasons;
“In our opinion, the subject of all types of service of processes, whether personal or substituted, is to give notice to the other party on whom service is to be effected so that he might be aware of, and able to resist, if he may, that which is sought against him. Therefore, since the primary consideration in an application for substituted service is as to how the matter can be best brought to the attention of the other party concerned, the court must be satisfied that the mode of service proposed would probably, after all practicable means of effecting personal service have proved abortive, give him notice of the process concerned.”
In the present case the 1st appellant had argued that he was not served before the trial court commenced proceedings and entered judgment in favour of the respondents. Chief Sotayo-Aro submitted in his brief that the 1st appellant failed to give any reason for his own absence on numerous occasions when the case was called up before judgment. But with respect, the first appellant was not aware of all these adjournments because his counsel. Mr. Aibinu, on whom the learned Judge had ordered that service of process should be made, had not informed the 1st appellant about the progress of the proceedings before the court. The counsel has admitted that he had not done so and a counsel in the chambers of Chief Sotayo-Aro, Mr. Jimoh-Lasisi confirmed this in his affidavits of service. Since the learned trial Judge did not find it necessary to summon Mr. Aibinu to court to explain about his absence from the court, it is my view, that an order as to effecting a personal service on the 1st appellant directly, should have been made first before making the order for a substituted service. What was being substituted, one is bound to ask? There was never an attempt to serve the 1st appellant personally before the order for the substituted service was made.
I do not agree that there was any problem in locating the appellant at No. B4/134A Alufa Nla Street, Agege. His Counsel, Mr. Aibinu, could be made to bring the 1st respondent to court or even asked to give a pointer at his address. It is impossible to believe that a person who pleaded to have about 200 trailer lorries, 500 cows, workshops and workmen on the land in dispute in Agege could not be traced to be served personally with a court process. With due respect I hold the view that the learned Judge should have believed the 1st appellant when he said he had not been served, because it was at the same residence where he admitted having been served with forms 48 and 49 of the Sheriffs and Civil Process Law Cap 127 and also it was at the same place where he was arrested on the court’s order.
It is well settled in law that a trial court has a discretionary power to set aside a judgment which was obtained in default of appearance if the affected party satisfied the court that it has a good defence. In B. G. C. C. v. Spetsai (1962) 1 All N.L.R. 496, Ademola C.J.F. said:
“I should be sorry to decide that a defendant, as in this matter, who had heard of a summons against him, rather late, and was unable to enter appearance in good time, and had with great difficulty arrived in this country a few days after the judgment was entered against him, should be deprived of the right of a rehearing and putting a defence which appears genuine on the face of it before the court.”
The case in hand involves a large piece of land of some 20 acres and the 1st appellant had filed a statement of defence of 22 paragraphs. I believe that if he was aware that the proceedings were about to commence he would have come to court or engaged another counsel to defend the action on his behalf.
It is obvious from the facts of this case that there wasn’t any attempt made to serve the 1st appellant personally with the hearing notice before the proceedings opened. Very serious efforts, the details of which must be disclosed in an affidavit, must be shown to have been made to effect a personal service before the court could order for a substituted one. See Mander v. Falcke (1891) Ch 488. I have said it earlier in this judgment that all services of processes were made on Mr. Aibinu and no determined efforts were made to serve the 1st appellant personally.
It is a cardinal principle of justice that trials of actions are not games of chances. There are set down rules and regulations to guide the trials and they must be obeyed. If a Judge exercises his discretion the appeal court has a duty to analyse and be satisfied that the discretion has been exercised not only judicially but also judiciously, on sufficient materials. See Saffieddime v. C.P. (1965)1 ALL NLR 54 at 56. Thus an appeal court may interfere with the exercise of judicial discretion if it is shown that the trial court acted under misapprehension of fact, in that it gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials, and in all other cases where it is in the interest of justice to interfere. See Enekebe v. Enekebe (1964)1 ALL N.L.R. 102. Aniagolu JSC in Ntukidem v. Oko (1986) 5 NWLR, Part 45, 909 at 921 had this to say;
“In the determination of cases, a Court aims always at achieving substantial justice for the parties and, therefore, in the exercise of judicial discretion, the primary objective of the Court must be to attain substantial justice. As Thesiger, L.J. had stated in the often cited case of Collins v. Vestry of Paddington (1880) 5 QBD at 368 and 381;
“…each party has a right to have the dispute determined upon the merits, and courts should do everything to favour the fair trial of the questions between them.”
He went on to observe that blunders must take place from time to time and such cases of blunder may be remedied by payment of costs or the imposition of terms and conditions. The West African Court of Appeal adopted this reasoning in Ojikutu v. Odeh (1954) 14 WACA 640.”
I also adopt the reasoning very well stated above, and in the interest of justice this case must be sent back to the High Court for a retrial upon the merits. The delay in filing the application which is the subject of this appeal was due to the fact that there was an attempt to settle the matter out of court. It is on record that the learned trial Judge had caused the matter to be adjourned on several occasions in order to facilitate the drawing up of such a settlement. There are therefore cogent reasons for the delay in filing the application for leave to apply to set aside the judgment delivered on 27th May, 1983.
In consequence of the foregoing, this appeal has to succeed and it is allowed. The ruling of Desalu J. delivered on 16th November, 1984, is set aside. Since all appeals in this court are by way of rehearing I have considered all the submissions in respect of the application before the court and extend the time for the appellants to apply to set aside the judgment obtained in default of their appearance before the court. Time is extended to today. The judgment obtained against the 1st appellant is set aside, for the reasons given in this judgment. The judgment obtained against the 2nd appellants being a nullity, is also set aside. The case is remitted back to the High Court for the retrial of the action, de novo, before another judge. I award N30 costs in favour of the appellants at the court below and N1, 200, in this court.
Other Citations: (1987) LCN/0034(CA)
